A Law Designed for a Nineteenth-Century Country at War
How did we get here? The predecessor of today’s Insurrection Act, the Calling Forth Act of 1792, reflected the founding generation’s intense suspicion of domestic military operations. Under this law’s provisions, if the President wished to deploy the militia to enforce the law (and it had to be the militia, because the use of federal troops would not be authorized until 1807), he first needed to obtain certification from a federal judge that doing so was necessary under the circumstances. Even after obtaining certification, the President was restricted to using only the affected state’s militia unless Congress was out of session; in that case, he could call on other states’ militia forces, but only until Congress was back in session and able to respond to the crisis. The entire law was also set to expire after three years, ensuring that Congress would be forced to reevaluate it.
President George Washington scrupulously complied with these procedures when he invoked the Calling Forth Act to suppress the Whiskey Rebellion in 1794. The next year, Congress replaced the expiring law with a permanent Militia Act. This new statute was broadly similar to the 1792 version but lacked many of its procedural safeguards, including the judicial certification requirement. Rightly or wrongly, Washington’s exemplary conduct during the Whiskey Rebellion had persuaded Congress that it need not be so fearful of executive overreach. The 1795 enactment forms the core of what is today the Insurrection Act. It was amended several times over the next 80 years until, by the 1870s, all the remaining guardrails from the original 1792 law—including the time limits on deployment—had been stripped out.
During this period, the Supreme Court also helped to expand the President’s powers under the Insurrection Act. In the 1827 case Martin v. Mott, the Court was asked to consider whether President James Madison had lawfully invoked the 1795 version of the law during the War of 1812. The Court determined that it could not question Madison’s decision—and neither could anyone else. In the Court’s view, the President’s decision as to whether a given situation justified invoking the Insurrection Act and deploying troops was “conclusive upon all other persons.” In effect, under Martin, an insurrection is whatever the President says it is.
To be sure, Martin is a nearly 200-year-old case, and much has changed in the high court’s jurisprudence. Yet the holding in Martin has never been overturned or even subjected to serious question. Perhaps more importantly, thanks to subsequent amendments, the current Insurrection Act grants even broader authority to the President than the version that was at issue in 1827. There is therefore no reason to assume that the modern Supreme Court would rule differently in a similar case, especially in light of the general tendency of U.S. courts to show deference to the executive in cases related to national security.